A

PRESENTATION

ON

DRAFTING OF

DEEDS, DOCUMENTS, STAMPING &

REGISTRATION

CA. Rajkumar S Adukia

B.Com(Hons.) FCA, ACS,MBA, AICWA, LLB ,Dip In

IFRS(UK)

rajkumarfca@gmail.com

www.caaa.in

9820061049/9323061049

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AGENDA• Overview

• Scope & Practice

opportunities

• Drafting

• Stamping

• Registration

• How to get Drafting Work

• Habits of a Successful

Professional

• ICAI Activities

Certain Myths

• To do drafting one should

be LLB

• Only lawyers can do

drafting

• There can be errors in

documents

• There is huge responsibility

• We have not studied the

subjects

Certain myths• I have been practicing for the

last 30 years in income tax it is

difficult to venture into a new

area

• There are members who done

CA after retirement CA.

Balasubramanian - author of

many books along with CA.M

P Vijay Kumar

• Mother and daughter doing

CA together

“He is able ,who

thinks he is

able.”-Buddha

ATTITUDE

JESSICA COX

DRAFTING – Meaning , History

• Draft –preparatory document

for discussion

• Rough draft

• Earlier patwari/clerk used to

draft

• First draft prepared when

human being started writing

Meaning of Drafting• Drafting may be defined as

– the synthesis of law and fact

– in a language form

• It can also be described as

– the practice, technique or skill

– involved in preparing legal documents

– that set forth the rights of the parties.

• According to Chamber‟s 20th Century

Dictionary, the word “to draft” means

– to draw an outline of;

– to compose and writing;

– to draw off and to detach.

Oxford Dictionary on Drafting

“Drafting is a specific type of legal

writing dealing with legislation,

instruments, or other legal

documents that are to be

construed by others. Statutes, rules,

regulations, contracts and wills are

examples of legal drafting.”

DRAFTING, PLEADINGS &

CONVEYANCING• DRAFTING – Agreements arising

out of contracts

• PLEADINGS-formal statement of

cause of action or defence

a.Civil pleadings

b.Criminal pleadings

c.Writs

CONVEYANCING-convey or

transfer between living persons

Professional

Opportunities

In

Drafting,stamping and

registeration of

documents

Professional Opportunities Look a subject from global perspective

Consultation

Drafting of Various Documents

Vetting of drafted agreements

Modifications

Due Diligence

-Limitation

-Filing Claim

Other drafting opportunities- trade

report,committee reports

KPO

STAMPING

REGISTERATION

BUSINESS LAWS IMPACT

“Make fair

agreements and stick to

them”

–

Confucius China's most famous teacher,

philosopher, and political

theorist, 551-479 BC

Document,

Deeds,

Agreement,

Instrument

What is a Document?• A Writing

• A Textual Record

• Words printed, lithographed or

photographed are document;

• A map or plan is a document;

• An inscription on a metal plate

or stone is a document;

• A caricature is a document.

• Includes instruments, deeds,

agreements etc. Documents will

also include Electronic records.

‘Document’ defined

• Section 3 of the Indian

Evidence Act, 1872

• Section 3(18) of the General

Clauses Act, 1897

• Section 29 of the Indian Penal

Code, 1860

S 3(18) of the General

Clauses Act, 1897"Document" shall include any

matter written, expressed or

described upon any substance by

means of letters, figures, or marks

or by more than one of those

means, which is intended to be

used or which may be used for

the purpose of recording that

matter.

S 29 of the Indian Penal

Code, 1860“The word „Document‟ denotes any

matter expressed or described upon

any substance by means of letters,

figures, or marks or by more than one

of those means, intended to be used

or which may be used as evidence of

that matter”.

• Explanation 1 to Section 29

of the Indian Penal Code

1860:- It is immaterial by

what means or upon what

substance the letters,

figures or marks are

formed, or whether the

evidence is intended for, or

may be used in, a Court of

Justice, or no.

What is an Agreement?

• A Legal and binding

document

• A Contract

• A Treaty

What is Drafting?

Early version of a written work or

a preliminary sketch,

Rough outline.

Essay written in paragraph form.

A first version

A preliminary sketch

What is an Instrument?

A legal document (a deed, will, mortgage, or insurance policy)

A trade able asset

A negotiable item (security, commodity, derivative or index, or any item that underlies a derivative)

On Drafting

Stages in Business Contracts

Stage 1 Stage 2 Stage 3 Stage 4

Negotiation Drafting Stamping Registration

Why good drafting is

important?

Life Time Document.

Once made difficult to

prove to other party or

court.

Avoids consequences like:

Financial losses

Loss of time & image

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Skills of a Good Draftsman

1. Gather all facts

2. Prepare an outline.

3. Use Single principle of division

4. Divide the subject matter into

major topics.

5. Arrange matters in a logic

sequence.

6. Give Appropriate headings.

7. Remember the audience

8. Clear writing.

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Skills of a Good Draftsman

9. Concrete words.

10. First word/ phrase of important part of deed in capitals

11. Avoid gender-specific words

12.Short sentences.

13.Proper punctuations.

14.No drafting in the passive voice

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Skills of a Good Draftsman

15. Statements in a positive form.

16. Avoid non-committal language.

17. Co-ordinate ideas in similar form.

18. Keep related words together In summaries, keep to one tense, especially the present tense.

19. State dates, sums and numbers in both figures and words

20. The emphatic words at the end

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Skills of a Good Draftsman

21. Document should be in simple

words

22. Logical Arrangement

23. Proper word usage

24. Legal Compliance

25. Short and brief

26. Use terms like „ not exceeding‟

instead of „less than‟ and

„more than‟

27. Clear expression of opinion

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Aids to a Good Draftsman

1. Roman/Arabic numerals,

capital/ lower case letters

for sub-divisions

2. Capitalization to show

essentials of the

document

3. Paragraphing, spacing,

and indenture

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Aids of a Good Draftsman

5. Latin, Roman and purely

technical terms in English

italicised / underlined

6. Headings and sub-

headings

7. Use of good quality paper

8. No spelling/ grammatical/

typing mistake

Applicable Laws

on

Drafting of Documents

Applicable Legislations in Drafting

Transfer of Property Act,

1882

Registration Act,1908

Indian Evidence Act, 1872

Indian Contract Act, 1872

Indian Stamp Act,1899

Constitution of India

Companies Act, 1956

Indian contract act 1872

Applicable Legislations in Drafting• Sale of goods act 1930

• Negotiable instruments act

1882

• Arbitration and conciliation

act 1996

• Relevant applicable law

Compulsory Clauses

• Cover the worst possibility

to avoid litigation

• Arbitration clause is a must

in every agreement

“What we call reality is an agreement that people have arrived at to make

life more livable.”

-

Louise Nevelson quotes (Russian born American

Abstract Expressionist Sculptor. 1900-1988)

Understanding

Deeds & Documents

Deed

Of some legal/equitable right, title/claim

Undertaking/concurring in some other act

Affecting the legal relations/position

Of a party to the instrument

Or of some other act affecting other person/ corporation

Components of Deeds

1. Deed title

2. Place & date of execution

3. Description of parties

4. Recitals

5. Consideration

6. Receipt clause

7. Operative clause

8. Description of property

Components of Deeds

10. Exceptions & Reservations

11. in property documents-Land Boundary Clause (Parcel)

12. To Have & to Hold Clause (Premises – qty of estate)

13. Covenants & undertakings

14. Testimonial Clause

15. Signature and attestation

16. Endorsement & Supplemental deeds.

17. Annexure or schedules.

Classes of Documents• Statutory drafting – It covers

statutes and enactments and

quasi-judicial documents like

Memorandum or Articles of

Association, bye-laws of a society

etc.

• Conveyancing - means the act

of conveying or transferring from

one person to another or transfer

inter vivos and covers documents

like sale deed, mortgage, lease,

will etc.

“There is nothing more likely

to start disagreement

among people or countries

than an agreement.”

-

E. B. White quotes (American

writer 1899-1985)

“Nobody agrees with anybody else anyhow, but

adults conceal it and infants show it”

-

Ogden Nash quotes (American Writer of

humorous poetry who won a large following for his audacious verse. 1902-

1971)

Types of Stamp Paper

• Judicial stamp papers: These

are used for legal and court

work.

• Non-judicial stamp papers:

These are use for making

contracts, agreements,

registration of documents,

entering into leases or

sale/purchase transactions

etc.

Illustrative List

of

Business & Other

Documents

Classification of Documents1. Business Documents related to

Formation of Entity

2. Running Business Documents

3. Capital Market Related

Documents

4. Internal Audit & Statutory Audit

Documents

5. Corporate Governance

6. Intellectual Property Rights

7. Family & Finance Matters

8. Property related documents

9. Documents under business laws

1. Business Documents - Formation

of Entity• Partnership Deed (Formation,

Admission, Retirement, & Dissolution)

• LLP (Agreement & Incorporation)

• Companies (Memorandum & Articles of Association, pvt public Section 25 Non Profit Companies, Chapter IX of Companies Act i.e. Registration)

• Charitable Trust Deed

• NPO Society-Memorandum of Association & Rules & Regulations.

• Joint Venture Agreement

• AOP Agreement

• Private Trusts under Indian Trusts Act, 1882.

Memorandum & Articles of

Association

• Memorandum is the company's

charter

• Articles is an official document

governing the running of a

company

• Contains the rules and

regulations of the internal

management

Partnership Deed

• Governed by the Indian Partnership Act, 1932

• Deed of Partnership is not necessary

• Signed by all partners and witnessed by independent persons.

• Specify the duties and authority of all the partners

• Details of salary and other payments to partners

• Registration not compulsory

LLP Incorporation document & LLP

Agreement

• A hybrid between a

company and a

partnership

• LLP Incorporation

Document

• LLP Agreement

Trust Deed• Prima facie evidence of existence of a

trust

• Facilitates devolution of trust property

• Specifies the trust-objectives

• To control, regulate and manage the

working and operations

• For appointment and removal of the

trustee(s),

• Essential for

– registration of conveyance of immovable

property

– obtaining registration under the Income-tax Act

and claiming exemption from tax

Society – Memorandum of Association

and Rules and Regulations• Main instrument of any society

(no stamp paper reqd.)

• All societies in India have to be registered under the Societies Registration Act 1860.

• Memorandum - contains name, registered office, area of operation, objects, name of members of governing body and names of promoters.

• Rules and Regulations - includes all the provisions that would regulate functioning of the proposed Society

2. Running Business Documents

• Foreign Collaboration Agreement

• Arbitration Agreement

• Meetings (Notices, Minutes of Board

Meeting, General Meetings,

Resolution)

• Employee Appointment Agreement

• Power of Attorney

• Mortgage Deed

• Hypothecation Agreement

• Shareholders‟ Agreement

• Term sheet

• Indemnity bond

3. Capital Market Related

Documents

• Prospectus

• ESOP

4. Internal Audit & Statutory Audit

Documents

• Engagement Letter

• Stock Audit Report

• Internal Audit Report

• Report to those charged with

governance.

• Due Diligence Report

5. Corporate Governance

• Code of Conduct

• Risk Management Framework

• Internal control Framework

• Internal Audit Manual

• Whistle Blower Policy

• Audit Committee Charter

6.Intellectual Property Rights

• Assignment Agreement

• Transfer Agreement

• Anti Counterfeiting Trade

Agreement

• Agreement on IPR

• Non Disclosure Agreement

• International Agreements on

IPR

7. Family & Finance Matters

• Deed of Family Settlement

• Wills- codicil

• HUF – formation ,partial,complete

partitions

• Divorce settlement deed

• Adoption deed

• Gift deed

• Specific family laws related

documents like wakf etc

Wills

• A legal declaration of intention by the

testator.

• With respect to property of the

testator

• Effective and operative only after the

death of the testator.

• Testator has the liberty to revoke the

will at anytime during his life time.

• Will made by a Hindu, Buddhist, Sikh or

Jain is governed by the provisions of

the Indian Succession Act, 1925

Gift Deed

• A transfer without any

element of consideration

Documents related to

properties• Sale and agreement to sell

deed

• Leave and licence

agreement

• Lease deed

• Development agreement

Documents related to

properties• Mortgage deeds-section 58

of transfer of property act

1882

• 58(a) definition of mrtgage-

transfer of interest in specific

immovable property for

securing advance

• 58(b)simple mortgage

• 58(c)mortgage by

conditional sale

• 58(d) usufructuary

mortgage

• 58(e) english mortgage

• 58(f) mortgage by deposit

of title deeds

• 58(g) anomalous

mortgage

Stamp Duty

• What is stamp duty?

– Stamp duty is a form of tax

on documents.

– A revenue earner for the

government.

Law relating to Stamping

• The basic purpose of Indian

Stamp Act, 1899 is to raise

revenue to Government.

• There are 78 sections under the

Act.

• There are seven chapters under

this Act.

• States such as Maharashtra,

Karnataka and Kerala have their

State Stamp Act, while many

States follow the 1899 legislation.

Instruments chargeable to

stamp duty

• According to section 2(14) of

Indian Stamp Act, Instrument

includes every document by

which any right or liability, is, or

purported to be created,

transferred, limited, extended,

extinguished or recorded.

• Any instrument mentioned in

Schedule I to Indian Stamp Act

is chargeable to duty as

prescribed in the schedule

Duly stamped

• „Duly stamped‟ means that

the instrument bears an

adhesive or impressed

stamp not less than proper

amount and that such

stamp has been affixed or

used in accordance with

law in force in India.

Impressed Stamps

• Impressed stamps include

– labels affixed and impressed

by the proper officer and

– stamps embossed or

engraved on stamped

paper and

– impression by franking

machines

Adhesive Stamps

Adhesive stamps are

further categorized as

• Postal stamps

– used only for transactions

with the post office and

related functions.

• Non-postal stamps

Non Postal Stamps - Examples

1. Judicial stamps

2. Court fee stamps

3. Coping sheets

4. Non-judicial stamp papers

5. Revenue stamps

6. Special adhesive stamps (labels)

7. Notarial stamps

8. Foreign Bill stamps

9. Brokers note

10. Insurance policy stamps

11.Share transfer stamps

12.Hundi

13. Insurance agency stamps

Registration of Documents• Governed by central act namely the

Registration Act, 1908

• Deals with cases where transactions

are reduced to writing

• Provides for compulsory section 17 or

optional registration section 18

• Not for transaction not reduced to

writing.

• 91 sections divided into XV Parts.

Compulsory Registration S-17

• Transfer or assignment of decree

/ order of a Court or any award if

it creates, assigns, limit or

extinguishes in present or future,

any right, title or interest in an

immovable property, wherein the

value exceed Rs.100/-.

• Authority to adopt a son and not

conferred by a Will.

Section 17(1) of Regn Act 1908

• The following documents shall be registered

(a) instruments of gift of immovable property;

(b) other non- testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

c) non- testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation declaration, assignment, limitation

Section 17(1) of Regn Act 1908or extinction of any such right, title or

interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non- testamentary instrumentstransferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property

Section 17(2)of Regn Act 1908

Nothing in clauses (b) and (c) of sub- section (1) applies to–

(i) any composition deed; or

(ii) any instrument relating to shares in a joint stock company,

(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument

Section 17(2)of Regn Act 1908(iv) any endorsement upon or transfer of

any debenture issued by any such company; or

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interestof the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court; or

(vii) any grant of immovable property by the Government; or

Section 17(2)of Regn Act 1908(viii) any instrument of partition made by a

Revenue- officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (26 of 1871 ), or the Land Improvement Loans Act, 1883 (19 of 1883 ); or

(x) any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or (xa) 2[ any order made under the Charitable Endowments Act, 1890 (6 of 1890 ), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]

Section 17(2)of Regn Act 1908

(xi) any endorsement on a mortgage- deedacknowledging the payment of the whole or any part of the mortgage money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue officer.

Optional registration

• Sec.18 prescribes the situations /

documents where registration is

optional:

– Instruments which create, assign,

declare or limit any title or interest,

wherein the value of the

immovable property is less than

Rs.100/-.

– Lease of immovable property not

exceeding one year.

– Wills

Time for presenting documents

for registration

• Every document other than a Will should be

presented for registration within 4 months

from the date of execution. Section 23

• Where there are several persons executing

a document at different times, such

document may be presented for registration

and re registration within four months from

the date of each execution.

• Wills can be presented or deposited at any

time. Section 40 & 41

Place of registration

• Every document relating to

immovable property should be

presented for registration in the

office of a Sub-Registrar within

whose sub-district, the whole or

some portion of the property is

situated.

process of registration

• Document required to be

registered in duplicate.

• Two passport size photos of both

parties

• Two witnesses

• Proof of identification of each

party and witnesses

Certain requirements for

registration

• In case the property is/was

under a lease from any

government authority, then

permission of lessor for

registration of the document.

• No objection Certificate to the

effect that the property is not

under acquisition.

Few websites of state

registeration depts• www.igrmaharashtra.gov.in –

Registration department -Maharashtra

• www.tnreginet.net - Registration department – Tamil Nadu

• www.keralaregistration.gov.in –Registration Department, Kerala

Few websites of state

registeration depts• http://www.wbfin.nic.in/page/dirc_St

ampReg.aspx - Registration Department, West Bengal

• http://www.karigr.org/ - Department of Stamps & Registration, Karnataka

• http://igrs.ap.gov.in/ - Registration department, Andhra Pradesh

• www.rajstamps.gov.in/ - Registration

& Stamps Department, Rajasthan

•

How to get work • Have goal of very

successful draftsman

• Demonstrate you know the

subject

• Have confidence to

execute

• Believe that you can do

better than others

• Do networking

• Have learning attitude

How to get work

• Comply with code of

ethics & CA act 1949

• Address on subject

• Write in business

periodicals

• Write a book

• Create a website

• Become active in

chamber of

commerce,state,central

how to enhance skills

• Practice, practice

,practice

FEW WEBSITES

• www.outsource2india.com

• www.legalhelplineindia.com

• www.netlawman.co.in

• www.lawyers-india.com

• www.draftncraft.com

Habits of successful

professional• Is a member of study circle

• Spent on technical books

• Spent on seminar

• First draft is prepared &

vetted in details by self

ICAI ACTIVITIES

• ABOUT 40 COMMITTEES

• TECHNICAL BACKGROUND

MATERIAL

• ASSIST IN GIVING

FEEDBACK

• ADDRESSING THE

PROGRAMME

Questions